Defendant acknowledges that, in State
v. Burns, 213 Or App 38, 43, 159 P3d 1208 (2007), rev dismissed, 345
Or 302 (2008), we reaffirmed previous decisions of this court holding that, in
order to convict a defendant of violating ORS 811.705, the state need not establish
that the defendant knew that a person was injured in the accident but, instead,
must establish that the accident was "likely to have resulted" in
injury. However, defendant argues that, in Burns, we failed to
appreciate the portion of our decision in State v. Hval, 174 Or App 164,
171, 25 P3d 958, rev den, 332 Or 559 (2001), where we stated that "personal
injury alone does not give rise to any duties under ORS 811.705; rather, a
defendant must be shown to have knowledge of an injury." According to
defendant, in Burns, we did not come to grips with our construction of
the statute in Hval but, instead, applied a "liberal construction"
of the statute because the defendant in Burns challenged the indictment
after verdict rather than before trial. Defendant also asserts that, in this
case, the indictment alleged that he knew that a person was injured in the
accident and that, as a consequence, the state was required to prove such
knowledge.

In Burns, the defendant argued
that the indictment was inadequate because it did not allege that he knew that
there were injuries resulting from the accident, or even that he knew such
injuries were likely. We noted:

"Although the statute itself does not specify any
particular mental state, we have held that the state must establish that the
defendant acted knowing that he had been in an accident that was 'likely to
have resulted in injury or death.' State v. Van Walchren, 112 Or App
240, 245, 828 P2d 1044, rev den, 314 Or 574 (1992); see also State v.
Hval, 174 Or App 164, 171, 25 P3d 958 (2001) (citing Van Walchren for
the proposition that state must prove defendant acted knowing that accident
resulted in injury)."

Burns, 213 Or App at 43-44. Although the indictment
in Burns alleged that the defendant had left the scene "unlawfully
and knowingly," it did not allege any mental state with respect to the
element that there was an accident resulting in injuries. Id. at 41.
Reviewing the case on appeal from the denial of a motion in arrest of judgment--and
thus with a less exacting standard--we rejected the defendant's argument. We
applied the general rule regarding the sufficiency of indictments:

"The indictment in this case alleged that
defendant 'was involved in an accident that resulted in physical injury * * *
and did unlawfully and knowingly fail to remain at the scene of the accident.'
That allegation tracks the language of the statute and the case law construing it.
It is not so inscrutable as to wholly fail to state an offense. To the
contrary, the wording is more than adequate to 'enable a person of common
understanding to know what is intended. '[State v.] Wimber,
315 Or [103,] 109[, 843 P2d 424 (1992)]. We conclude that the trial court did
not err in denying defendant's motion in arrest of judgment."

Burns, 213 Or App at 44. In short, although in Burns
we noted in passing the tension between our decisions in Van Walchren
and Hval, we nonetheless followed the construction used in Van
Walchren and, at least in the context of a post-verdict challenge to an
indictment, concluded that the state was required to prove only that the
defendant knew that it was likely that a person was injured in the accident.

In State v. Rutley, 343 Or
368, 171 P3d 361 (2007), which was decided several months after Burns, the
Supreme Court clarified the analysis concerning whether a culpable mental state
attaches to a particular element of a crime. That analysis commences with an
inquiry as to whether the statute in question defines an offense within or
outside the Oregon Criminal Code. For statutes within the criminal code, the
determination of the elements to which a culpable mental state attaches is
governed by ORS 161.095(2) and ORS 161.115(1). For statutes defining offenses
outside the criminal code, ORS 161.105(1)(b) divides such statutes into two
subcategories: those statutes that by their language indicate a legislative
intent to dispense with any culpable mental state for the offense or for any
material element of the offense, and those statutes that contain no such
indication. If a statute outside the criminal code does not demonstrate a
legislative intent to dispense with a culpable mental state regarding a
particular element, then the inquiry is governed by ORS 161.095(2) and ORS
161.115(1) in the same manner as if the statute were within the criminal code.
See State v. Jones, 223 Or App 611, 617-18, 196 P3d 97 (2008), rev
den, 345 Or 618 (2009) (explaining the above analysis). We now apply that
analysis to the construction of ORS 811.705 to resolve the issue in this case.

ORS 811.705 is outside the criminal
code. Accordingly, we first consider whether the statute demonstrates a
legislative intent to dispense with any culpable mental state. The statute is
silent as to whether a culpable mental state applies to any element of the
offense. However, statutory silence alone is not a sufficiently clear
indication of legislative intent to dispense with a culpable mental state, and
we determine the legislature's intent by examining the offense or element of
the offense and a variety of indicators of legislative intent to determine
whether the legislature would have had an obvious reason or reasons to omit a
culpable mental state. Rutley, 343 Or at 375-76. Here, the provisions
of ORS 811.705(1) are plainly intended to ensure aid to injured persons at the
scene of an accident, preserve evidence pertaining to injury-producing
accidents, and facilitate communication in the exchange of information
concerning claims made following such an accident. Although the purpose of
protecting injured persons is readily apparent from the statutory text, it
would be illogical to assign to a driver any of the duties pertaining to
injuries set out in the statute unless the driver was aware of a risk that a
person had been injured in the accident. So, for example, even if a driver
stopped at the scene of an accident, an ordinary driver would not appreciate
the need to undertake the obligation in subsection (1)(e) to render aid to a
person injured in the accident unless the driver was at least aware of a risk
that someone had been injured in the accident. Accordingly, there is a logical
nexus between the evident purposes of the statute and, at a minimum, an
awareness of a risk that a person was injured in the accident. It follows that
the statute does not demonstrate a legislative intent to dispense with a
culpable mental state.

We turn, then, to the effect of ORS
161.095(2) and ORS 161.115(1) on the analysis. ORS 161.095(2) provides that, "[e]xcept
as provided in ORS 161.105, a person is not guilty of an offense unless the
person acts with a culpable mental state with respect to each material element
of the offense that necessarily requires a culpable mental state." ORS
161.105(1) provides, in part:

"Notwithstanding ORS 161.095, a culpable
mental state is not required if:

"* * * * *

"(b) An offense defined by a statute
outside the Oregon Criminal Code clearly indicates a legislative intent to
dispense with any culpable mental state requirement for the offense or for any
material element thereof."

In turn, ORS 161.115(2) provides that, "[e]xcept as
provided in ORS 161.105, if a statute defining an offense does not prescribe a
culpable mental state, culpability is nonetheless required and is established
only if a person acts intentionally, knowingly, recklessly or with criminal
negligence."

Because ORS 811.705 does not
prescribe a culpable mental state, nor does it dispense with one, ORS
161.095(2) and ORS 161.115(2) are the controlling statutes. As previously
discussed, it is illogical, in light of the evident legislative purposes
underlying ORS 811.705, to conclude that the legislature did not intend to
require a defendant to have some culpable mental state with respect to whether
a person was injured in the accident. The question reduces to what mental
state is required. In State v. Monroe, 101 Or App 379, 790 P2d 1188
(1990), we discussed the culpable mental state required under ORS
811.700(1)(a), proscribing failure to perform the duties of a driver when
property is damaged. We said:

"ORS 811.700(1)(a) does not show a legislative intent
to dispense with a culpable mental state, ORS 161.105(1), so the appropriate
mental state is described in ORS 161.115(2):

"'Except
as provided in ORS 161.105, if a statute defining an offense does not prescribe
a culpable mental state, culpability is nonetheless required and is established
only if a person acts intentionally, knowingly, recklessly or with criminal
negligence.'"

Monroe, 101 Or App at 384.

In Van Walchren, we concluded
that "[t]he same analysis applies under ORS 811.705(1). If a person knows
that he has been in an accident, culpability for failure to perform the duties
of a driver is established if the person acts intentionally, knowingly,
recklessly or with criminal negligence. ORS 161.105(1); ORS 161.115(2)."
Val Walchren, 112 Or App at 245. The quoted portion of our decision in Van
Walchren is consistent with the methodology prescribed in Rutley.
Thus, it was sufficient for the state to prove that defendant acted with
criminal negligence with respect to whether a person was injured in the
accident. "Criminal negligence" is defined as follows:

"'Criminal negligence' or 'criminally
negligent,' when used with respect to a result or to a circumstance described
by a statute defining an offense, means that a person fails to be aware of a
substantial and unjustifiable risk that the result will occur or that the
circumstance exists. The risk must be of such nature and degree that the
failure to be aware of it constitutes a gross deviation from the standard of
care that a reasonable person would observe in the situation."

ORS 161.085(10) (emphasis added).

Defendant does not assert that the
evidence was insufficient to show that he acted, at a minimum, with criminal
negligence with respect to whether the driver of the motorcycle was injured.
Accordingly, we do not address that issue. Suffice it to say that the state
was not required to prove that defendant knew that another person was injured
in the accident. Our contrary dictum in Hval was incorrect, and we
disavow it. Likewise, we disavow our suggestion in Van Walchren that
the defendant must "know" that the accident was "likely to have
resulted in injury or death."

The question remains whether, by
alleging in the indictment that defendant "knowingly fail[ed] to
immediately stop" his vehicle at the scene of the accident, the state
nonetheless undertook the burden of proving that defendant knew that the driver
of the motorcycle was injured. We do not construe the indictment to so
allege. As discussed, the indictment here alleged that

"[t]he defendant, on or about July 28, 2007, in Jackson
County, Oregon, being the driver of a vehicle being operated on the highway,
which vehicle was involved in an accident that resulted in physical injury to
[the victim], did unlawfully and knowingly fail to immediately stop the vehicle
at the scene of the accident or as close thereto as possible and remain at the
scene."

As a grammatical matter, the allegation that defendant acted
knowingly is attached only to the allegation that defendant failed to stop the
vehicle at the scene of the accident. Irrespective of whether the state was
required under ORS 161.115(2) to prove that defendant acted knowingly with
respect to any other element of the charged offense, we do not interpret the
indictment to impose an elevated burden of proof with respect to an element as
to which such a burden is not unambiguously pleaded. See Rutley, 343 Or
at 378 (declining to impose an elevated burden of proof as to an element with
respect to which the indictment failed to unambiguously plead such a burden).